Audio 4:22
Speaking out key to addressing racism

Lexi MetherellUpdated
Fri 8 Feb 2013, 7:02 PM AEDT

Racial vilification has been an offense in New South Wales for more than two decades, but there's never been a prosecution. A social scientist says the law may not be the key to addressing the issue, and has urged people to speak out if they're subject to or witness racism after the racial abuse of ABC News presenter Jeremy Fernandez on a Sydney bus.

Transcript

TIM PALMER: A racist tirade directed at ABC News presenter Jeremy Fernandez on a Sydney bus this morning was probably only one of a number of similar instances happening across the country today.

Most, if not all, of those will typically go unreported and even those that are, are unlikely to make it to court.

In more than 20 years of New South Wales racial vilification laws, there's never been a single prosecution.

Lexi Metherell reports.

LEXI METHERELL: Jeremy Fernandez considers himself entirely Australian after coming here from Malaysia in his teens. But the ABC news presenter has been the target of racial abuse before.

Even so, the sustained tirade from a woman on a Sydney bus this morning was particularly distressing.

JEREMY FERNANDEZ: I cop racial abuse from time to time, women cop sexism from time to time, disabled people cop the same, you know, it's just everyone deals with it and moves on but the fact that it went on for 15 minutes - on and on and on, it was just horrendous.

And this was the first time I've been racially abused while I had my daughter with me and that was what moved me so much and shook me so much was that I thought, oh my god, this is the introduction to a lifetime of her to understanding what hate is about.

LEXI METHERELL: After the woman, who was with her own children, had disembarked, Jeremy Fernandez asked the driver why he hadn't intervened.

JEREMY FERNANDEZ: And I said to him I'm a migrant and he said, "So am I". And I said well you should understand what this is like, you should have said something or done something. Why didn't you? And he said, "What so you're blaming me for the racism?"

And I said well I'm blaming you for not kind of keeping the order on the bus. This woman was accusing me of being a paedophile and attacking me and you did nothing. So look, it is what it is. It happens every day in Australia.

LEXI METHERELL: Jeremy Fernandez vented his disgust on Twitter. Not everyone feels so free to speak out though.

Professor Kevin Dunn is the dean of social sciences at the University of Western Sydney.

KEVIN DUNN: As much as 20 odd per cent of people experience race hate talk at some time, yet we know also that only about 2 per cent of people who've experienced that, of that 20, so a very small number, will actually make a formal complaint to a body or to the police or to an employer.

LEXI METHERELL: Why are the rates of reporting so low?

KEVIN DUNN: Because they're far too difficult for a victim to mount the case and to withstand the process as it's done. Unlike a crime in which the police will undertake the investigation and the carriage of that matter, really the burden falls upon the victim.

LEXI METHERELL: Unlike Commonwealth laws, and those of some other states, New South Wales legislation makes it a criminal offence to racially abuse someone. But in more than 20 years of the law's existence, there's never been a prosecution.

A large part of the problem for prosecutors, according to ANU law professor Simon Rice, is proving vilification.

SIMON RICE: Essentially you have to prove an incitement to hatred or serious contempt or severe ridicule beyond reasonable doubt. If as a policy position we want to set a criminal standard for this sort of conduct, then we have to find a way of identifying the conduct so that you can actually prove it.

I suspect that's the problem with the current wording.

LEXI METHERELL: The New South Wales Government is inquiring into the law's effectiveness.

Professor Rice.

SIMON RICE: It's interesting that the Government is concerned that there's a criminal provision that hasn't been used. I agree that it starts to discredit the law if its sits on the books for a long time without being used.

So if this is an inquiry generally concerned that a public policy position isn't being achieved through inadequate legislation, then it's appropriate to make an inquiry.

LEXI METHERELL: Professor Kevin Dunn says redrafting the law may not be the key to addressing racism.

KEVIN DUNN: In the end, the way to really fix up the race hate talk that happens in our public realms is for us all to speak up and speak out when we hear and see racism.